Obama Nominates Merrick Garland for SCOTUS Vacancy Caused By Scalia's Death

Today President  Barack Obama nominated Merrick Garland, Chief Judge of the U.S. Court of Appeals for the  D.C. Circuit to fill the vacancy on the United States Supreme Court caused by the death of Antonin Scalia on February 13.

Garland, 63, is currently the chief judge of the U.S. Court of Appeals for the D.C. Circuit. A former prosecutor, he's also viewed as a moderate. And he has cultivated a reputation for openness and collegiality at the D.C. Circuit, a bench that's sometimes called the second most important in the land. 

Garland will visit Capitol Hill on Thursday to begin meeting with legislators, Obama said. 

After the announcement was made, Senate Majority Leader Mitch McConnell reiterated his pledge that the Senate would not take any steps toward confirming an Obama nominee. McConnell's fellow Republicans in Congress echoed his comments.

It should be noted that if the Senate does not hold hearings on Obama's choice it will be the first time in the modern era such obstruction has occurred. Despite Senator McConnell's statements, at least 8 Republican Senators have said that they will meet with Judge Garland.

Ding Dong Scalia Is Dead! Obama Will Get 3rd SCOTUS Pick!

Wow! There are multiple reports (first broken by the San Antonio Times) that 79-year-old Antonin Scalia, the longest-serving member of the United States Supreme Court (appointed by President Ronald Reagan in 1986) has been found dead at a ranch in Texas.

This means that President Barack Obama will have a 3rd opportunity to appoint a Justice to the Court. Previously he has appointed Sonia Sotomayor (2009) and Elena Kagan (2010)

The Republicans will almost certainly claim there is not enough time to approve a justice who will be breaking the now 4-4 tie between left-leaning and right-leaning remaining on the Court.

Regardless, the Supreme Court will become a major factor in the 2016 presidential race and that has to increase turnout and help the Democratic nominee.

GOOD NEWS! SCOTUS Upholds Obamacare. Again!

For the second time in three years, the United States Supreme Court has defended the Affordable Care Act (more commonly known as ObamaCare) from legal challenge. The Court ruled 6-3 in King v. Burwell to uphold ObamaCare by deciding that the intent of Congress was to improve the national health care market and thus upheld the interpretation that subsidies "established by the State" could mean the state or federal government.

Any day in which Justice Antonin Scalia is reading bitter dissents from the bench is a good day! There are two more days (Friday June 26 and Monday June 29) in which the Court will be releasing the five remaining decisions (including the landmark Obergefell v. Hodges on marriage equality in all states).

Here's hoping for more Scalia dissents!

GODLESS WEDNESDAY: The Protester From Yesterday's Supreme Court Argument

This week for Godless Wednesday I figured I would feature another examples of abusive behavior by the "godfearing." Yesterday, during oral arguments before the United States Supreme Court about whether civil marriage must be available to same-sex couples in every state of the union, the guy pictured above, Rives Miller Grogan, disrupted the proceedings by yelling out "If you support gay marriage then you will burn in hell!" and as he was being hustled out of the room "It's an abomination!"

Lovely, hmmm?

Even more bothersome, in my opinion and others, was Justice Scalia's response, which was "It was rather refreshing, actually." Really? "Refreshing"? In what way, exactly?

NOW THERE ARE 37! Marriage Equality Comes To Alabama!

With the Supreme Court's 7-2 vote to deny their request for a stay on a federal judge's ruling striking down Alabama's ban on marriage equality, the Cotton State becomes the 37th in the union to allow same-sex couples to get married. Only Justices Scalia and Thomas would have approved Alabama's request for a stay.

Same-sex couples are getting married in the majority of the counties in Alabama today, despite attempts by Chief Justice Roy Moore and Governor Robert Bentley to not follow the rule of law as clearly articulated by the federal judiciary. Gee, when has that happened before?

Hat/tip to Joe Jervis

Supreme Court Refuses To Delay Florida Marriage Equality From Going Into Effect Jan. 5

Wow! The United States Supreme Court has denied Florida's request for a stay of a federal district court judge's decision ruling that Florida's 2006 state constitutional amendment banning marriage equality violates the federal constitution. The Court said that Justices Thomas and Scalia would have granted the petition for a stay.

This is a VERY big deal, because this is the first time the High Court has let marriages go into effect as a result of a mere district court decision, when there was no precedent for marriage equality in the controlling appellate circuit of jurisdiction. Florida is in the 11th Circuit, and that appellate circuit has not ruled in favor of marriage equality (and in fact has some anti-gay decision in its not too recent past). The current legal skirmish the Supreme Court decided was about what should happen while the merits of the state's appeal get determined. Almost a year ago, in Utah's marriage equality case, the Supreme Court unanimously granted a stay putting a federal district court decision in Kitchen v Herbert on hold while the 10th Circuit was considering that appeal. In both cases the appellate circuit had refused to grant the stay while they considered the appeal and the state appealed to the Supreme Court in both cases. In the Utah case, the 10th Appellate Circuit ruled against the state on the merits on appeal. Ultimately, the Supreme Court refused to hear Utah's appeal of that loss, allowing marriage equality to go into effect in the 4th, 10th and 7th circuits. The denial of a stay in Armstrong v. Brenner (the Florida case) demonstrates how swiftly the tide has turned in favor of marriage equality, even at the Supreme Court level. 11 months ago they granted a similar petition, 9-0, on Friday they denied it 2-7.

The Washington Blade reports:

In August, U.S. District Court Judge Robert Hinkle ruled against the state’s ban on same-sex marriage, known as Amendment 2, but placed a stay on his order until 91 days passed after the appeals process was completed in the Utah, Oklahoma and Virginia marriage cases. When the U.S. Supreme Court refused to review these cases, it set for date for same-sex couples to be able to marry in Florida starting Jan. 5. 

Bondi tried to extend the stay on the same-sex marriages as she continued to defend the law in court, but her requests were by denied by the district court as well as the U.S. Eleventh Circuit Court of Appeals, which ordered the stay to be lifted “at the end of the day” on Jan. 5.  

In a statement, Bondi said Florida will acquiesce to the Supreme Court’s decision to allow the stay to expire after Jan. 5 as initially ordered by the district court. 

Hat/tip to Equality On Trial

SCOTUS Denies Kansas Request For Stay On Marriage Equality Ruling

The Supreme Court denied a last-ditch effort by Kansas to prevent marriage equality from coming to the Sunflower State on Wednesday. As you can see from the order, only Clarence Thomas and Antonin Scalia would have granted the stay. There had been some question whether the Suporeme Court would continue allowing same-sex couples to get married in states after the 6th Circuit broke the string of appellate court rulings in favor of marriage equality last week, making it likely that the court will have to issue a ruling with national impact sooner rather than later.

Hat/tip to Chris Geidner

Now There Are 20! Wisconsin's Ban on Marriage Equality Struck Down!

Of course, just hours after I wrote a post with a map depicting the 19 states that have marriage equality, a 20th was added when a federal judge ruled in Wolf v. Walker that Wisconsin's state constitutional ban on same-sex marriage was unconstitutional.

The lawsuit was filed by the ACLU, which celebrated thusly:

"We are tremendously happy that these loving and committed couples will now be able to access the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “These discriminatory laws are falling around the country and it is only right that Wisconsin move forward as well.” 

"Wisconsin’s constitutional ban on marriage for same-sex couples is a striking example of intentional discrimination towards lesbians and gay men in Wisconsin,” said John Knight, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “The marriage ban has sent a powerful message  that same-sex couples are undeserving of the dignity and important legal protections associated with marriage. Judge Crabb’s decision that same-sex couples are equal under the law sends an entirely different message -- one inviting and encouraging fair treatment and respect for these couples."

Couples are getting married in Madison and Milwaukee:

There are now 20 states in which same-sex couples can get legally married and twenty consecutive federal court ruling since last year's Supreme Court ruling in U.. v. Windsor. Apparently Justice Antonin Scalia's dissent in that case was cited no less than a dozen times in Judge Crabb's decision striking down Wisconsin's marriage law!

Hat/tip to Joe Jervis

Same-Sex Marriage Now Legal In Utah After Federal Judge Strikes Down Marriage Ban

Well, well, well! While I was incommunicado watching The Hobbit: The Desolation of Smaug this afternoon apparently there was some amazing breaking news. Federal judge Robert Shelby issued a ruling which struck down Utah's voter-passed constitutional amendment banning same-sex marriage and refused to issue a stay of his decision, which means that same-sex couples can now get married in the Beehive state. There is a keen sense of irony that this is occurring in Utah, which is the location of the Mormon Church, one of the most virulent opponents of marriage equality and LGBT rights throughout the country.

The Church of Jesus Christ of Latter-Day Saints issued a statement:

 The Church has been consistent in its support of traditional marriage while teaching that all people should be treated with respect. This ruling by a district court will work its way through the judicial process. We continue to believe that voters in Utah did the right thing by providing clear direction in the state constitution that marriage should be between a man and a woman and we are hopeful that this view will be validated by a higher court.

The Governor of Utah, Republican Gary Hebert said:

"I am very disappointed an activist federal judge is attempting to override the will of the people of Utah. I am working with my legal counsel and the acting Attorney General to determine the best course to defend traditional marriage within the borders of Utah."

The full text of the decision can be accessed here.

Ian Milhiser analyzed the ruling at Think Progress:

Beyond Judge Shelby’s conclusion that marriage is a question of constitutional rights, not one of states’ rights — as he explains, “the Fourteenth Amendment requires that individual rights take precedence over states’ rights where these two interests are in conflict” — Shelby’s opinion appears designed to tear down whatever intellectual infrastructure remains supporting marriage discrimination.

The leading argument advanced by supporters of discrimination in same-sex marriage cases is that marriage is necessarily tied to procreation, so same-sex couples can be excluded because they cannot produce biological offspring. Yet, as Shelby points out, the ability to procreate is not “a defining characteristic of conjugal relationships from a legal and constitutional point of view.” Such an argument does not simply “demean[] the dignity” of same-sex couples, it also degenerates “the many opposite-sex couples who are unable to reproduce or who choose not to have children.” Indeed, under Utah’s argument for maintaining marriage discrimination, “a post-menopausal woman or infertile man does not have a fundamental right to marry because she or he does not have the capacity to procreate.”

Additionally, opponents of marriage equality who cheered Justice Antonin Scalia’s sharply worded dissent in Lawrence v. Texas — another landmark gay rights opinion — may come to regret Scalia’s words after reading Judge Shelby’s opinion. Scalia wrote in Lawrence that “[t]oday’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Shelby’s opinion proclaims that Scalia was right.

Oh the delicious irony. Will noted homophobe Justice Antonin Scalia disavow his dissent in Lawrence in order to deny a fundamental right to marry that he announced the Supreme Court would be powerless to prevent from being articulated if private sexual relations were removed from governmental regulation? It will be fascinating to see what happens when this decision goes to the Tenth Circuit Court of Appeals to the Supreme Court in the future.

But right now, astonishingly, Utah is the 18th state in the union to have enacted marriage equality, and the first very red state to do so. Presumably, same-sex couples will be able to get civil marriage licenses and get married in Utah (no waiting period!) until a stay is issued by a higher court, which could happen as early as Monday.

Hat/tip to Joe.My.God

The Next Governor of Virginia May Be A Raving Homophobe

Virginia Attorney Genera Ken Cuccinelli is running for Governor and he is a raging homophobe. Evidence of support for this characterization is his decision to appeal a recent ruling striking down that state's "crime against nature".

The Washington Blade reports:

Caroline Gibson, a spokesperson for Cuccinelli, told the Blade in an email that Cuccinelli believes the dissenting judge on the three-judge panel was correct in stating the Lawrence decision applies only to sex between consenting adults in private and doesn’t apply to cases involving a minor. The case in which the three-judge panel of the 4th Circuit Court of Appeals overturned the Virginia sodomy law involved a man charged with soliciting oral sex from a 17-year-old woman.

“We believe the panel decision was erroneous, and that the dissent correctly concludes that the petitioner was not entitled to federal habeas corpus relief, Gibson said, referring to the court’s decision to overturn the man’s conviction under the sodomy law. “So the full court should have the opportunity to decide this matter,” she said.

“Like most people, we think the court made the right decision,” said James Parrish, executive director of the LGBT advocacy group Equality Virginia.

“We think what needs to happen is the General Assembly needs to remove the current sodomy law that has been declared unconstitutional,” he said.

Cucinelli is running for Governor of Virginia as a Tea Bag Republican, someone who thinks that Supreme Court justice Antonin Scali is "too liberal." Back in 2009, when he was running for election as Virginia Attorney General, Cucinelli said:

 My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. And I think in a natural law based country it’s appropriate to have policies that reflect that. ... They don’t comport with natural law. I happen to think that it represents (to put it politely; I need my thesaurus to be polite) behavior that is not healthy to an individual and in aggregate is not healthy to society.”

This is the man who may be elected the next Governor of the Commonwealth of Virginia in roughly 7 months.

GetEqual: History is Watching The Supreme Court

This is a pretty compelling video from the direct action group GetEqual, basically warning the individual Justices of the United States Supreme Court that they might not want to get on the wrong side of history with their rulings in the Proposition 8 and DOMA cases. GetEqual is calling for nothing short of full federal equality under the law for LGBT citizens, something the Court is unwilling to do in the cases, but substantial progress, such as marriage equality in an additional 9 states and heightened scrutiny paid to laws that discriminate on the basis of sexual orientation  or gender identity are not unlikely results of decisions in Hollingsworth v. Perry and United States v. Windsor.

I'm pretty sure the voice-over is done by my friend Ben Patrick Johnson.

Hat/tip to Joe.My.God

Queer Quote: Frank Talk On Scalia's Bigotry

Barney Frank, retiring openly gay Congressman, was on Michelango Signorile's radio show when he gave his reaction to the story about Supreme Court justice Antonin Scalia's comparison of sodomy to murder.

Frank left no doubt about his feelings about the conservative jurist:

"This young man said to him, ‘Why do you compare sodomy to murder?’ And he said, ‘Well because I have a right to say if I think something is immoral.’ Well the question wasn’t about his right. The question was, By what morality is expressing your love for someone in a physical way equivalent to killing that person? It makes it clear that the man is an unreconstructed bigot, and given that you have a bigot on the Supreme Court like that, it is useful to know."

Other people, such as George Takei have called on Scalia to recuse himself from ruling on the pending gay marriage-related cases, Hollingsworth v Perry and U.S. v Windsor.

What do you think?

Analyzing This SCOTUS Term To Predict The Next

In today's New York Times reporter Adam Liptak analyzes the just-completed 2011-12 term of the United States Supreme Court and unearths some interesting (and surprising) facts. The Court heard oral arguments in 65 cases and summarily decided 10 other cases without oral argument. That's 75 decisions in which certioari was granted despite getting literally thousands of appeals from all the lower courts in the land.

Chief Justice John Roberts was only 1 percentage point behind Anthony Kennedy, who is widely viewed as the fulcrum around which the nation's highest court pivots around, in the percentage of cases in which they were in the majority (92% to 93%). This number is a widely watched measure as a signifier for the most "powerful" or influential member of the Court.

The court decided 15 cases by 5-to-4 votes, roughly in line with earlier terms. It was also not unusual that two-thirds of those decisions divided along ideological lines, with Justice Kennedy joining either the court’s four more liberal members (Justices Kagan, Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor) or its four more conservative ones (Chief Justice Roberts and Justices Alito, Scalia and Clarence Thomas). 

What was striking this year was that Justice Kennedy, a moderate conservative, swung right and left an equal number of times. Since 2000, there have been only two terms in which Justice Kennedy did not vote with the conservatives at least 60 percent of the time in such ideologically divided cases.

Is Kennedy evolving to the left? I guess I'm pretty happy with a 10-point shift towards liberal results instead of his usual 60-40 split between conservative and liberal positions. Maybe it's because he seems to be getting closer to Elena Kagan, since the two voted similarly 83% of the time this term. There are only two pairs of justices who voted similarly more than 90% of the time  (you guessed it!) Antonin Scalia and Clarence Thomas with the other (somewhat surprising) pair being George W. Bush appointees Roberts and  Samuel Alito. I guess "Scalito" is not living up to his reputation to become "a little Scalia" on the Court.
And that's a good thing. As his absolutely unacceptable fit of pique in the Arizona immigration ruling aptly demonstrated, even one Scalia on the Supreme Court is one too many!

You should really read Liptak's entire piece for yourself. There are some big gay rights cases coming up in the 2012-13 term, most likely involving the so-called Defense of Marriage Act (DOMA) and another determining the constitutionality of California's attempt to withdraw marriage rights from same-sex couples by allowing voters to amend the state constitution after California's Supreme Court had ruled such a right exists (2008's Proposition 8). These cases are known as Gill and Perry, respectively. We'll know on the first Monday of October whether the Court will indeed accept these cases for final review (and issue a ruling by this time next year). There are also some very high-stakes cases coming in the new term dealing with race. The Court has already agreed to hear oral arguments in Fisher v. Texas which it could use to completely strike down race-based affirmative action in higher education. In addition, there are several voting rights cases at the federal appellate circuit level, particularly Shelby County, Alabama v. Holder, which will almost certainly reach the Court in the 2012-13 term and could be used to strike down Section 5 of the Voting Rights Act of 1965. It's this provision of federal civil rights legislation which has been instrumental in putting a check on Republican politicians' attempt to suppress the voting rights of Black and Latino voters in states like Florida, Pennsylvania, Texas, Wisconsin and others through enactment of "voter identification" laws.

In the meantime it is useful to analyze last year's term to see if any ideological movement can be discerned which can help predict how the Court will rule in Gill and Perry, though as the ruling upholding the health care reform law demonstrated, accurately predicting how the Court will rule in any particular case is almost impossible!

Scalia Claims Sex and Sexual Orientation Bias Not Banned By Constitution

Adm Golub / The Chronicle

Antonin Scalia, the 74-year-old Associate Justice of the Supreme Court gave a speech at University of California Hastings on the 24th anniversary of his unanimous approval by the United States Senate on Friday.
Scalia, the notoriously homophobic head of the conservative wing of the Court told the audience that he is convinced that the United States Constitution's 14th Amendment's declaration of "equal protection of the laws" does not apply to women or gays and lesbians.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

[...]

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The court has not applied the same exacting standard to discrimination based on sexual orientation, an issue it could reach in several cases now in lower courts, including the dispute over California's ban on same-sex marriage.

But when the justices overturned laws against gay sex in 2003 as a violation of personal autonomy and due process, Scalia dissented vehemently. He compared the anti-sodomy laws to statutes against incest and bestiality and said many Americans view bans on homosexual conduct as protections for themselves and their families against "a lifestyle that they believe to be immoral and destructive."

It's interesting that Scalia will say in public that "gender bias 'shouldn't exist'" but he is on record in a published opinion of the Court declaring the homosexual "lifestyle" to be "immoral and destructive."

Perhaps he should recuse himself from future cases involving sex discrimination or sexual orientation discrimination before the Court?

BREAKING NEWS: Scalia Supports Gay Marriage!

Hat/tip Good As You.